DIFFERENTIATE COMMON LAW FROM CIVIL LAW SYSTEMS EMPHASIZING ON THE FOLLOWING POINTS: SOURCES OF LAW, PRINCIPLE OF PRECEDENTS AND THE DOCTRINE OF STARE DECISIS
Our research has as an aim the task to draw lines of differences between the two major legal systems of the world namely: the civil law which may be defined as that legal tradition, which has its origin in Roman law, originally inspired by the Corpus Juris Civilis of Justinian, and as subsequently developed mainly in Continental Europe. The civil law legal tradition itself can be divided further into the Romanic laws, influenced by French law, and the Germanic family of laws, dominated by German jurisprudence.In this system there is a very great tendency to codify laws. Laws are only those statutes enacted by the parliament as a means of respecting the principle of separation of powers and sometimes by recognized and competent authorities like the executive, there is a strictly observed hierarchy of norms and only a few sources recognized as primary sources of law.the other system is the common law system. This legal tradition, evolved in England from the 11th Century onwards and it derives its force and authority from the universal consent and immemorial practice of the people. The principles of common law appear for the most part in reported judgments, usually rendered by higher courts, in relation to specific fact situations arising in dispute, which courts have adjudicated.again, in this system codification of laws is regarded not necessary, ranking of sources of law and the law making process. We will not look at the other legal systems as the above mentioned are not the only systems but there are others like, ‘African legal tradition of sub-Saharan countries, a far-east legal tradition Consisting of China and Japan, held together by the Confucian tradition, as well as Legal traditions that are influenced by religion, including for example Islamic, Jewish or Hindu legal systems and also, at least until some years ago a ‘socialistic legal tradition. our research having been limited to civil and common law legal systems only, we devoted a big section to showing their differences based on their sources of law and another on the principle of precedents and the doctrine of stare decisis in the common law system as not recognized as due in the civil law systems and will finally look at some other areas of distinction between these two legal systems for though emphasis was put on the above mentioned areas they are not the only areas of distinction in the two major legal systems. Nearly closing our research we will highlight some areas of intersection between the two systems. Closing our research we were able to come to a conclusion on the differences between the above legal systems on basis of sources of law, principle of precedents and doctrine of stare decisis after thorough examination of both legal systems. Sources of law
It is always indispensable going into the depths of a legal system when carrying out a comparative study of legal systems. Therefore, to clearly show the major differences between the above highlighted two legal systems we have to go back and study both the civil law and common law sources of law. Sources of law in the civil law system.
The civil law system having derived from the roman laws especially the corpus juris civilis by Justinian recognizes the importance of codification and ranking of laws according to their order of eminence and authority. Therefore as a very crucial way of differentiating the civil law system form the common law system we should closely look at the different sources of law in this system. The civil law system unlike common law, classifies its legal sources into two parts, i.e. the primary sources consisting of the law itself, custom and sometimes in some countries excluding Rwanda, the general principles of law. While the other part is of the authorities or secondary or auxiliary sources of law which consist of...
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[ 23 ]. Also usurpation of power or duty, the fact of acting out of one’s assigned authority, see T. Mulisa, General administrative law course notes, llb2, Nur, Huye, 2012(unpublished), p.94.
[ 36 ]. X, comparative law course notes, llb2, Nur, Huye, 2011, p.16.
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